Reviewed by Mitzi Dorland, Institute for Law and Society, New York University. Email: mmd322 [at] nyu.edu.

pp.312-317

FROM LYNCH MOBS TO THE KILLING STATE, edited by Charles J. Ogletree, Jr. and Austin Sarat, assembles an impressive collection of essays from a diverse cast of authors for the task of explaining how and why the connection between race and the death penalty has been so strong throughout American history. By first grounding the connection in America’s history of racially motivated lynchings of suspected black criminals, and then illustrating the ways in which race has since continued to play a role in the administration of the “official” death penalty, this interdisciplinary collection provides much more depth to the connection between race and capital punishment than is often seen in other works. And, while the book focuses on the role of race, the essays also touch upon a wider range of important issues surrounding contemporary administration of the death penalty.

In their Introduction, Ogletree and Sarat contend that we are “now in a period of national reconsideration” of capital punishment. Surely, in recent years, and even since the book was published, prominent death row exonerations and, most recently, questions surrounding the humaneness of lethal injection, have coincided with significant reductions in the use of the death penalty. As the authors note, there have been dramatic declines in both the number of death sentences imposed each year and the number of offenders who are executed. Additionally, recent Supreme Court decisions have narrowed the scope of the death penalty, banning its application to the mentally retarded (ATKINS v. VIRGINIA 2002) and juveniles (ROPER v. SIMMONS 2005).

In contrast to the book’s focus, however, the issue of racial discrimination has seemingly been pushed from the forefront in recent years within the abolitionist movement itself, particularly by allegations of actual innocence, and, most recently, the surge of litigation alleging the cruelty of current lethal injection procedures. In his independent contribution (Chapter 8), Sarat chronicles and analyzes this shift toward highlighting actual innocence over racial disparities. Stuart Banner, however, suggests that race continues to play a prominent role in the “tactical decisions of death penalty opponents.” He notes, in part, that the website of the Death Penalty Information Center, “the most sophisticated and thorough of the abolitionist organizations,” had listed “Race” as the “very first of the ‘Issues’ surfers might wish to explore, ahead of competitors like ‘Innocence,’ ‘Costs,’ and ‘Deterrence’.” But “Race” has lost this distinction since Banner visited the site in 2002—the “Issues” have now [*313] been alphabetized, with “Arbitrariness” listed first. Of course, this change may have little or no significance, but the new listing of “Race” as just one among a whole litany of issues may better signify its current treatment within the abolitionist movement and the contemporary debate over capital punishment.

Still, statistical studies demonstrating racial disparities in the administration of the death penalty abound. In their recent review of post-1990 empirical research on the issue, David Baldus and George Woodworth found that, “in a substantial majority of jurisdictions where studies have been conducted, the data document race-of-victim disparities reflecting more punitive treatment of white-victim cases among similarly aggravated cases, regardless of the race of the defendant.” Additionally, in several jurisdictions, “cases involving black defendants and white victims are treated more punitively than cases with all other defendant/victim racial combinations” (Baldus and Woodworth 2003). And the research goes on. New studies continue to be commissioned and conducted in states where apparent disparities have not yet been tested. Thus, while the issue of race may no longer be front and center in the movement to abolish the death penalty, it has not lost its significance. And what the authors in FROM LYNCH MOBS TO THE KILLING STATE aptly address, from a variety of disciplinary perspectives, is how we may understand and account for these statistics suggesting a continuing connection between race and the death penalty.

In their Introduction, Ogletree and Sarat identify the main question that the authors seek to address: how and why the connection between race and the death penalty has been so strong throughout American history. Ogletree and Sarat further describe, “our book is an effort not so much to describe the fact of the race-capital punishment nexus but to show the ways that the death penalty is racialized, the places in the death penalty process where race makes a difference, and the ways the very meanings of race in the United States are constituted in and through our practices of capital punishment.” The book is divided into three parts, in which historical, legal, cultural, and social science perspectives are brought to bear on these issues.

Part I, “The Meaning and Significance of Race in the Culture of Capital Punishment,” explores the connection between our country’s history of “spectacle” lynching, a highly racialized practice, and racial disparities in the administration of the death penalty today. In the first essay, Timothy Kaufman-Osborn provides an insightful and well-developed examination of the contention that pervasive racism in the criminal justice system renders the contemporary execution of African-American men akin to the lynchings that occurred throughout our country’s history. Ultimately, he finds, appropriation of the term “lynching” to describe contemporary capital punishment “conceals as much as it reveals.”

Kaufman-Osborn rejects the idea that contemporary due process protections [*314] secure a “categorical distinction” between lynchings and capital punishment. However, he also stresses the differences between these practices, both in the ways in which they are conducted and in the state’s degree of participation, and the effect of these differences on our perceptions of the role of race in contemporary capital punishment. In particular, he examines the way that these “transformations” have contributed to an “epistemology of ignorance” regarding the contemporary interplay between race and the death penalty, which he argues has rendered the death penalty’s contribution to racial subordination “more difficult to apprehend.” For instance, our current use of a method of execution (lethal injection) that no longer sends a message about the race of the offender masks the use of racism at other stages in the death penalty’s administration and covers up racial disparities. Thus, much of what may be regarded as “accomplishments” in administration of capital punishment, such as the movement to more “humane” forms of execution, actually “render it more difficult to recognize how the liberal state remains implicated in perpetuating the racial polity.”

In “Making Race Matter in Death Matters,” Ogletree brings a legal perspective to the historical relationship between race and the death penalty. He focuses, in particular, on courts’ and legislatures’ continued toleration of the death penalty’s disparate impact, despite repeated attempts to bring evidence of racial disparities to their attention. In MCCLESKEY v. KEMP (1987), the Supreme Court held that statistical evidence of racial disparity was insufficient to establish discriminatory purpose in a particular case under the Equal Protection Clause of the Fourteenth Amendment. Ogletree, however, provides an excellent account of the justifications for a measure like the Racial Justice Act, which would permit capital defendants to challenge their death sentences using statistical evidence of discriminatory impact, rather than requiring proof of discriminatory intent. But Ogletree may put too much faith in what a measure like this could achieve, beyond official acknowledgement of the potential influence of race in death sentencing. Although this acknowledgment, in itself, may be significant, research from Kentucky, the only state to pass a Racial Justice Act, suggests that the state’s own Act has rarely been invoked and likely has had little effect (Lesman 2005).

Stuart Banner ends Part I with “Traces of Slavery: Race and the Death Penalty in Historical Perspective.” Banner stresses the importance of understanding and evaluating the connection between race and the death penalty in its historical context. For centuries, capital punishment was, in part, a method of racial control. If not for this history, Banner argues, the issue of race would not have such prominence today, and we might treat the racial disparity in the imposition of the death penalty the way we treat other acknowledged disparities in other institutions—by working to reform the disparity, rather than rid ourselves of the institution all together. It is this history, he argues, that makes all the difference.

Part II, “Race and the Death Penalty [*315] Process,” provides an excellent sampling of research examining the influence of race in juries’ capital sentencing decisions. One criticism of this section, however, is that all three essays deal with discrimination at the same stage in a capital punishment proceeding. Although each of the chapters employs a different methodology and disciplinary perspective, the section may have been further enhanced through examples of research documenting racial disparities at a number of different stages in the process.

In “The Role of Victim’s Race and Geography on Death Sentencing: Some Recent Data from Illinois,” Michael L. Radelet and Glenn L. Pierce provide an in-depth account of the statistical study documenting racial disparities in juries’ death sentencing decisions that was cited by Illinois Governor George Ryan in his blanket clemency of death row inmates in 2003. This chapter is an especially welcome addition to the book because it centers on racial discrimination outside of the southern region of the United States. Although much of the book’s historical focus concerns lynching in the South, it is important to note that this is not the only region in which empirical studies have noted racial disparities in death sentencing. In his chapter, Benjamin Fleury-Steiner examines the same stage of the death penalty process through interviews with capital jurors, providing insights into the influence of race in death sentencing from a contextual evaluation of jurors’ statements in these interviews. And, Mona Lynch provides a fascinating report on the results of an experimental study examining the role that subtle or unconscious racism plays in death-sentencing decisions by mock jurors.

Lynch’s article highlights well what is a common theme throughout the book—the recognition that racism today is often subtle or unconscious, rather than overt. This distinction is important for a number of reasons. First, it suggests that the current legal standard set forth in MCCLESKEY, requiring proof of discriminatory intent, is not sufficient to address the type of discrimination that still pervades the administration of the death penalty today. When racism is subtle or unconscious, where is the “smoking gun”? Secondly, a recognition and explication of the forms of unconscious racism that may influence death sentencing is also important in helping both laypersons and death penalty supporters understand the significance and seriousness of documented racial disparities. Many may reject the significance of such disparities because they cannot understand them—they cannot imagine being influenced by the race of a defendant or victim, and struggle to understand how race can still affect death sentencing to such a degree. Recognition that subtle or unconscious racial prejudice may be at play is important in explaining the persistence of these disparities.

Part III, “Race, Politics, and the Death Penalty,” includes two essays, by Stephen B. Bright and co-editor Austin Sarat. One disappointment with this section is that the Bright article provides nothing new—it was published in essentially the same form (absent minor changes in phrasing and a few updated [*316] statistics) over 10 years ago (Bright 1995).

However, Sarat does an excellent job of tracing the ways and instances in which racial discrimination has played a role in the “new abolitionism,” beginning with the concurring opinions of Justices Douglas and Marshall in FURMAN v. GEORGIA (1972). Racial disparity, he argues, has largely been treated as just one factor in an overall assessment that the death penalty, as administered, does not comport with the constitutional dictates of fairness and equal protection. However, where his essay is less successful, in my opinion, is in its challenge to abolitionists to place the issue of race back at the forefront of the debate. Sarat fails to explain convincingly how this would prove a more successful strategy for abolitionists than placing the issue of actual innocence front and center (as Governor Ryan did in his blanket commutation of death row inmates) or including racial disparities as just one factor among many that demonstrate the irremediable and thus fatal inequities of the death penalty system. Ultimately, Sarat provides a more convincing account for why race has fallen behind the issue of innocence within the “new abolitionism” than for why abolitionists should return the issue of race to the forefront.

Most of the authors in FROM LYNCH MOBS TO THE KILLING STATE are clearly speaking from an abolitionist perspective, and it is not surprising that most of the essays carry the implicit or explicit suggestion not only that racial disparities exist and must be eliminated, but that the death penalty itself should be eliminated. Conceptually, however, there is an apparent disconnect between arguing that racial disparity permeates the system (which suggests reform is needed) and arguing that this disparity warrants, or dictates, abolition. As Banner points out in Chapter 3, even if it could be guaranteed that the death penalty would be implemented on a race-neutral basis, this would not satisfy most activists, whose ultimate goal is really abolition, not equality in death sentencing. Thus, in order to connect these two points—the racial inequality in capital punishment and the need for abolition—it must also be argued that these racial disparities cannot be eliminated. As Sarat points out in the final chapter, this is exactly the argument made by the “new abolitionists.”

FROM LYNCH MOBS TO THE KILLING STATE presents an engaging collection of essays from a broad range of perspectives that together provide a far-reaching and insightful examination of the link between race and the death penalty from the past through the present. Through the lens of our country’s long history of racial discrimination in both the legal and extralegal infliction of death, it forces the reader to reexamine how and why this connection between race and the death penalty still endures. And it reminds us, lest we forget, in the face of death row exonerations and claims of cruelty in lethal injections, the extent to which race still matters in the imposition of the death penalty. [*317]

REFERENCES:Baldus, David C., and George Woodworth. 2003. “Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research.” 39 CRIMINAL LAW BULLETIN 194-226.

Bright, Stephen B. 1995. “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty.” 35 SANTA CLARA LAW REVIEW 433-483.

Lesman, Alex. 2005. “Note and Comment: State Responses to the Specter of Racial Discrimination in Capital Proceedings: The Kentucky Racial Justice Act and the New Jersey Supreme Court’s Proportionality Review Project.” 13 JOURNAL OF LAW AND POLICY 359-424.